Two ill former IBM employees will take company to court

Two of the four former IBM employees suing the company in a California court for failing to warn them of the dangers of working with chemicals used in the manufacture of semiconductors and hard drives will tell their stories to a jury starting on Oct. 14, a lawyer for the plaintiffs said Tuesday in a release.

IBM is defending itself against numerous charges in California, New York and Minnesota that it knew workers were developing cancer from exposure to chemicals frequently used at IBM facilities, and that it concealed that information from its employees.

The company filed a motion last Friday to dismiss the four cases in the Superior Court of California for the County of Santa Clara located in San Jose, but was successful in removing only two of the pending cases, said Richard Alexander, a lawyer with Alexander, Hawes & Audet LLP in San Jose, who is representing the plaintiffs.

Former IBM employees Alida Hernandez and James Moore will have their cases heard, but IBM's motion to dismiss the cases filed by Maria Santiago and the family of Suzanne Rubio was granted by Judge Robert Baines.

The four plaintiffs claim they developed various forms of cancer after working at IBM's facility in San Jose during the 1970s and 1980s. Moore and Santiago contracted non-Hodgkins lymphoma, and Hernandez underwent a mastectomy after developing breast cancer. Rubio died from breast cancer in 1991.

Under California law, in order to sue an employer for fraud beyond the normal limits of worker's compensation statutes, the plaintiff must prove the defendant knew of an abnormal condition that could cause injury or death, and concealed both the abnormal condition and the fact that it was job-related from the defendant.

IBM argued that the plaintiffs had no evidence that showed IBM was aware of "systemic chemical poisoning" among its employees, according to the judge's rulings.

The company's lawyers also argued that since the defendants were aware of the symptoms before they developed illnesses, they can't claim that IBM withheld knowledge of those symptoms, according to the judge's rulings.

But the cases of Hernandez and Moore were allowed to proceed because over the years they were employed by the company they had reported various ailments and symptoms to IBM medical personnel that were considered "classic manifestations of systemic chemical poisoning" by the plaintiff's medical expert witness, the judge wrote.

The witness' expert opinion is enough to create a "triable issue" as to whether IBM doctors should have concluded that chemical poisoning was the reason behind the symptoms exhibited by Hernandez and Moore, the judge wrote.

In Rubio's case, however, the same expert witness was unable to say in a deposition that the symptoms she reported were definitively caused by chemical poisoning, only that the symptoms "were consistent with" chemical poisoning, the judge wrote. And since the plaintiffs were unable to demonstrate that Rubio actually suffered from chemical poisoning, there is no triable issue as to whether IBM was aware of that poisoning, he wrote.

IBM was able to get evidence in Santiago's case removed from the record, because she said in her initial deposition that she had never been to an IBM doctor prior to her diagnosis of lymphoma, but then in a later deposition said she had passed along information to IBM doctors regarding treatment of bronchitis by her outside doctor, according to the judge's decision.

Therefore, IBM could claim it had never received any information about Santiago's medical condition that would enable it to conclude she had suffered from chemical poisoning. Santiago was admitted to the hospital while on the job prior to her diagnosis, but the event was never recorded in IBM's medical log, and the reasons for her admittance would not be enough on their own to conclude they were caused by chemical poisoning, the plaintiffs' medical witness admitted.

The two cases will be the first of 40 pending cases to reach trial. IBM will contest the cases of Hernandez and Moore at trial, but Tuesday's ruling creates doubt as to the viability of the other 36 cases pending in San Jose, said Kendra Collins, an IBM spokeswoman.

"The ruling puts into question the validity of the remaining cases, and we cannot see how the remaining cases will meet the legal standards established by this ruling," she said in a statement. Because the judge focused on whether the plaintiffs had evidence that proved IBM was aware of symptoms that would cause cancer, the other cases will have to meet that burden of proof, she said.

All four plaintiffs will be able to pursue related claims against Shell Oil and Union Carbide, which manufactured the chemicals used by IBM, Alexander said.

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